Point of Law : Domestic violence – Challenge to interim orders - No bar in entertaining a petition under Article 227 of the Constitution even in orders passed by criminal courts.

JUDGMENT :

1. The petitioners have filed this petition invoking the jurisdiction of the Court under Article 227 of the Constitution of India with the prayer to set aside the orders dated 29.04.2021 and 07.09.2021 passed by the learned Additional Sessions Judge, Budgam.

2. It is seen that by order dated 29.04.2021 the learned Additional Sessions Judge has decided the Criminal Appeal no.181/2021 titled Sweety Rashid & ors. v Bilal Ahmad Ganai & ors., filed under Section 29 of the Protection of Women from Domestic Violence Act, 2005, and set aside the order dated 26.03.2021 passed by the learned Judicial Magistrate, 1st Class (Sub-Judge), Chadoora, whereby the trial Magistrate had dismissed the complaint on the ground that it did not have the territorial jurisdiction to entertain the complaint. The order dated 07.09.2021 has been passed by the learned Additional Sessions Judge in Civ. Misc. App no.848/2021 moved before that court when the appeal had long before been decided and there was no lis pending before that court pertaining to the matter.

3. Narration of the relevant background facts becomes imperative. Petitioner no.1 and respondent no.1 were married in the year 2012. Respondents 2 and 3 were born out of the said wedlock. On account of some marital dispute between the couple and commencement of litigation between the two, according to the petitioners, the wedlock was brought to an end by petitioner no.1 by executing Talaq-i-Rajaie on 06.07.2020. According to the petitioner, thereafter, he tried to persuade respondent no.1 to mend her unbecoming behaviour, but all his efforts proved futile, so he pronounced Talaq-i-Bayin against respondent no.1 on 05.09.2020. Thereafter, on 06.10.2020, petitioner no.1 is stated to have pronounced another talaq against respondent no.1 and declared that the marriage between the two shall stand dissolved and that there would be no relation between them as husband and wife.

4. It is averred that though petitioner no.1 and respondents are residents of Wuyan, Tehsil Pampore, District Pulwama, yet respondent no.1, with mala fide intention to cause harm, inconvenience and discomfort to the petitioners, filed an application under Section 12 read with other provisions of the Protection of Women from Domestic Violence Act, 2005, (DV Act), before the court of Judicial Magistrate, 1st Class (Munsiff), Chadoora, alongwith an application under Section 23 of the Act praying therein that petitioner no.1 be directed not to cause any act of domestic violence against her and also to direct him to pay the maintenance to the tune of Rs.40,000/- per month. The trial Magistrate passed an ex-parte order on 26.06.2020 directing petitioner no.1 to pay an interim maintenance of Rs.3,500/- to each of the respondents 1 to 3 herein, totalling to Rs.10,500/- per month with further direction that respondents’ possession of the house shall not be disturbed and that there shall be no interference in their domestic relation with petitioner no.1. The trial Magistrate also directed SHO, Women’s Wing, Rambagh, to act as Protection Officer and to submit compliance report. By a subsequent order passed on 27.06.2020, instead of SHO Women’s Wing, Rambagh, DO/SHO, Police Station Khrew was appointed as Protection Officer. The Protection officer so appointed is stated to have made a report to the Magistrate on 29.06.2020 stating therein that respondent no.1 was provided protection for residing in the old house, but she wanted to reside in the new house where her mother-in-law, Mst. Zoona, petitioner no.2, was putting up alongwith her daughter who had recently given birth to a child. According to the petitioner, the Protection Officer also reported to the court that since respondent no.1 had only recently used harsh and un-parliamentary language against her mother-in-law, in case she was allowed to live in the new house, the situation on the spot would turn volatile. It was also reported that the new house was the personal property of Mst.